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'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Thursday, 26 January 2017

European Union (Notification of Withdrawal) Bill

Update: 8th February - the Bill passed the House of Commons unamended. First Reading in the Lords took place the same day.

It is a Bill to "Confer power on the Prime Minister to notify, under Article
50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

There are just 2 clauses:

1Power to notify withdrawal from the EU

(1)The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

2Short title

This Act may be cited as the European Union (Notification of Withdrawal) Act 2017.

My notes:

1. The Bill is concerned with Notification to the EU and NOT with the DECISION to withdraw. It is interesting that Clause 1(1) uses the phrase "intention to withdraw from the EU" as opposed to "decision to withdraw from the EU." Whether anything turns on that remains to be seen.

As discussed in the previous post one possible outcome of the Bill may be that any doubt is removed as to whether a valid decision to withdraw from the EU has been made. After all, why else would Parliament confer a power to notify intention of withdrawal? Hence, it may be implied that a decision to withdraw from the EU has been made. Would it have been legally preferable for the Bill to explicitly say that a decision had been made? Definitely! As it stands, the Bill may leave the door ajar for further litigation over whether rights can be removed by implication. That is an unsatisfactory state of affairs.

2. There is no specified start date for the legislation such as a Commencement Clause. It would therefore come into force at the beginning of the day upon which the Bill receives Royal Assent - see Interpretation Act 1978 section 4.

3. The Bill (as introduced) seeks to confer power on the Prime Minister. It does not impose any duty to do so.

4. No date is specified by which the notification must be given.

5. There is no sunset clause which would end the power by a specified date if it has not been used.

6. In theory, points 4 and 5 mean that the power could be exercised at ANY time in the future.

7. There is no Interpretation Clause defining the meaning of terms such as European Union, Prime Minister etc. However see the European Union (Amendment) Act 2008 section 3 (Changes of terminology) where it is stated that a reference to the EU in an Act includes, if an in so far as the context permits or requires, a reference to the European Atomic Energy Authority.

8. See the Explanatory Notes where it will be seen that the government's plan is to "Fast Track" the Bill. A date for notification of 31st March 2017 is mentioned. It is also explained that European Union will include EURATOM - (see Additional links below).

The Explanatory notes state at paragraph 11 that the Supreme Court's judgment has required the government to complete an additional (and unexpected) step. To say that it is "unexpected" is disingenuous. It was an obvious outcome of the litigation which the government fought and many commentators thought that an Act was required from the outset.

9. There is little doubt that Members of Parliament will seek to amend the Bill in various ways and we will have to return to examine this later.